‘Winning Isn’t Normal’ Author Files First Cases with the CCB

Keith F. Bell is a sports psychologist and the author of the 1982 motivational book Winning Isn’t Normal. That book has become well-known largely for a single passage from it, often referred to as the “WIN Passage,” that has been shared widely as a motivational poem, commonly presented to sports teams.

However, that sharing has not always been with the permission of Bell. Because of this, Bell has filed dozens of lawsuits against various entities including sports, teams, school districts, coaches and more.

Unfortunately for Bell, the courts have not been particularly kind to his arguments. 

For example, in April 2019, Bell’s case against the newspaper the Magna Times was dismissed with prejudice. That same month, he voluntarily dismissed a similar lawsuit against Stanford University. In June 2020, a similar case against Liberty University was also dismissed with prejudice. 

In October 2020, he lost another case against the Oakland Community Pools Project (OCPP), who had shared the passage on their Twitter account, which only had 44 followers. Here, the court not only dismissed the claims against the OCPP, but awarded them attorneys’ fees to the amount of $122,000.

According to the court, Bell was in the business of litigation rather than genuinely trying to protect his rights, and noted that he had filed at least 26 other cases against 90 alleged infringers over the passage at that point.

In May 2021, Bell suffered another setback as against the Eagle Mountain-Saginaw School District was dismissed. Bell appealed that decision but, in February 2022, the Fifth Circuit Court of Appeals upheld the lower court’s decision.

In February 2023, Bell was once again hit with an order to pay attorneys’ fees (PDF), this time to the sum of $30,000 to The Milwaukee Board of School Directors. In that decision, the judge described Bell’s campaign as a “series of borderline frivolous suits.” 

In the cases above, save the OCPP one that hinged on statute of limitations issues, the courts found that the use of the passage was a fair use. Specifically at issue was that the passage was a short part of the book it came from and that its uses were rarely commercial.

However, Bell’s campaign is not ending, instead, it appears to be moving. Starting in late May 2023, Bell began filing cases with the Copyright Claims Board, including four cases filed within the last two weeks.

It is a shift in strategy that is likely to give many individuals worry and critics of the CCB ammunition.

Taking to the CCB

Bell filed his first case with the CCB (23-CCB-0183) in May 2023. In July, he was ordered by the board to amend the complaint over issues of clarity in identifying the infringed work.

A week later, he filed the amended complaint. Then nine days after that, he filed another claim targeting a business. Nine days after that, he had filed three more claims, targeting two individuals and one school district. The last case was filed two days before writing.

As of this writing, the cases he filed with the CCB are as follows:

1. Bell v. American Ranch Horse Association (23-CCB-0183)
2. Bell v. Perfect Crust Pizza Liners (23-CCB-0250)
3. Bell v. Solon Community School District Board of Education (23-CCB-0253)
4. Bell v. Jones (23-CCB-0255)
5. Bell v. McKenzie (23-CCB-0257)

In all five cases, the alleged infringement took place either on X (Twitter) or Facebook. The alleged infringements began between 2019 and 2021. Also in all five cases, Bell is representing himself and is seeking $30,000 in damages.

It’s clear that Bell seeking to continue his litigation and is using the CCB to do so.

Why the CCB?

As we discussed when looking at Joe Hand Promotions, another frequent CCB filer, the CCB has a lot of appeal for a litigant like Bell.

The CCB is much cheaper, with filing fees just $100 and total costs possibly as low as $200, it is much less expensive. Furthermore, it’s meant to be approachable by laypeople, meaning that Bell is able to move forward without an attorney, saving additional money.

CCB cases are also intended to be quicker, though, as we’ve seen in other cases, it can still take well over a year for a resolution to be reached. 

The downside to the CCB is the limited damages. The CCB has a cap on damages of $15,000 per work or $30,000 per case. This limits both what he can claim in damages and, if he is seeking settlements, what a settlement amount would likely be. 

That, in turn, may point to one of the first problems with his case, in all the cases he is seeking $30,000 in damages though, in all of the filings after his first required amendment, he’s only listed one work as being infringed. As such, the $15,000 cap would most liklely be relevant.

However, the bigger problem is that the laws don’t mysteriously change because he moved to the CCB. Fair use still works the same way. As we discussed above, Bell has a lengthy litigation history and courts have regularly ruled against him, though mostly on fair use, but also on statute of limitations.

The CCB, if these cases are contested, will likely look to those earlier court rulings and, unless there are notable differences in the cases, is likely to lean heavily on those earlier rulings.

In short, the goal of the CCB is to provide an avenue for smaller cases of copyright infringement to be heard, not write new law. So Bell is likely to face the same challenges with the CCB that he did in federal court, albeit with a lower cost of entry.

Bottom Line

When the CCB was launched in June 2022, many were worried that it would become a haven for “copyright trolls”. That never happened. The smaller fees and more equal footing have discouraged that.

Though I would not describe Bell as a copyright troll, he does attempt to license his work and doesn’t fit my working definition of the term, he has nonetheless been chastised by the courts for “frivolous” litigation and is the type of litigant many were worried would become prolific on the CCB. 

As such, his cases will be worth following. It will be interesting to see how the board approaches these cases, how the respondents respond, and what happens for here. 

The CCB does have the ability to order claimants to pay attorneys’ fees of up $5,000, places a hard limit on the number of claims a party can file in a single year and, in extreme cases, can ban parties or their representatives for one year if they are found to have repeatedly acted in bad faith. 

That’s not to say that such action is appropriate or necessary, but given the fact that Bell has already been ordered to pay attorneys’ fees in two cases, it is worth noting as these cases move forward.

In the end, these will be cases to watch. An aggressive litigant with a lengthy history of litigation is now filing with the CCB. How the board responds will be important in not only these cases, but in how the CCB is used in the future.